Blackstone ss48

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II. After a corporation is so formed and named, it acquires
many powers, rights, capacities, and incapacities, which
we are next to consider. Some of these are necessarily and inseparably
incident to every corporation; which incidents, as soon
as a corporation is duly erected, are tacitly annexed of course[y].
As, 1. To have perpetual succession. This is the very end of it's
incorporation: for there cannot be a succession for ever without
an incorporation[z]; and therefore all aggregate corporations have
a power necessarily implied of electing members in the room of
such as go off[a]. 2. To sue or be sued, implead or be impleaded,
grant or receive, by it's corporate name, and do all other acts as
natural persons may. 3. To purchase lands, and hold them, for
the benefit of themselves and their successors: which two are
consequential to the former. 4. To have a common seal. For a
corporation, being an invisible body, cannot manifest it's intentions
by any personal act or oral discourse: it therefore acts and
speaks only by it's common seal. For, though the particular
members may express their private contents to any act, by words,
or signing their names, yet this does not bind the corporation:
it is the fixing of the seal, and that only, which unites the several
assents of the individuals, who compose the community, and
makes one joint assent of the whole[b]. 5. To make by-laws or
private statutes for the better government of the corporation;
which are binding upon themselves, unless contrary to the laws
of the land, and then they are void. This is also included by
law in the very act of incorporation[c]: for, as natural reason is
given to the natural body for the governing it, so by-laws or statutes
are a sort of political reason to govern the body politic.
And this right of making by-laws for their own government, not
contrary to the law of the land, was allowed by the law of the
twelve tables at Rome[d]. But no trading company is, with us,
allowed to make by-laws, which may affect the king's prerogative,
or the common profit of the people, unless they be approved
by the chancellor, treasurer, and chief justices, or the judges
of assise [* ?? what word is this supposed to be? ] in their circuits[e]. These five powers are inseparably incident
to every corporation, at least to every corporation aggregate:
for two of them, though they may be practised, yet are
very unnecessary to a corporation sole; viz. to have a corporate
seal to testify his sole assent, and to make statutes for the regulation
of his own conduct.

There are also certain privileges and disabilities that attend
an aggregate corporation, and are not applicable to such as are
sole; the reason of them ceasing, and of course the law. It must
always appear by attorney; for it cannot appear in person, being,
as sir Edward Coke says[f], invisible, and existing only in intendment
and consideration of law. It can neither maintain, or be
made defendant to, an action of battery or such like personal injuries;
for a corporation can neither beat, nor be beaten, in it's
body politic[g]. A corporation cannot commit treason, or felony,
or other crime, in it's corporate capacity[h]: though it's members
may, in their distinct individual capacities. Neither is it capable
of suffering a traitor's, or felon's punishment, for it is not liable
to corporal penalties, nor to attainder, forfeiture, or corruption
of blood[i]. It cannot be executor or administrator, or perform
any personal duties; for it cannot take an oath for the due execution
of the office. It cannot be a trustee; for such kind of confidence
is foreign to the ends of it's institution: neither can it be
compelled to perform such trust, because it cannot be committed
to prison[k]; for it's existence being ideal, no man can apprehend
or arrest it. And therefore also it cannot be outlawed; for outlawry
always supposes a precedent right of arresting, which has
been defeated by the parties absconding, and that also a corporation
cannot do: for which reasons the proceedings to compel a
corporation to appear to any suit by attorney are always by distress
on their lands and goods[l]. Neither can a corporation be excommunicated;
for it has no soul, as is gravely observed by sir
Edward Coke[m]: and therefore also it is not liable to be summoned
into the ecclesiastical courts upon any account; for those courts
act only pro salute animae, and their sentences can only be inforced
by spiritual censures: a consideration, which, carried to
it's full extent, would alone demonstrate the impropriety of these
courts interfering in any temporal rights whatsoever.

There are also other incidents and powers, which belong to
some sort of corporations, and not to others. An aggregate corporation
may take goods and chattels for the benefit of themselves
and their successors, but a sole corporation cannot[n]: for such
moveable property is liable to be lost or imbezzled, and would
raise a multitude of disputes between the successor and executor;
which the law is careful to avoid. In ecclesiastical and eleemosynary
foundations, the king or the founder may give them rules,
laws, statutes, and ordinances, which they are bound to observe:
but corporations merely lay, constituted for civil purposes, are
subject to no particular statutes; but to the common law, and to
their own by-laws, not contrary to the laws of the realm[o]. Aggregate
corporations also, that have by their constitution a head,
as a dean, warden, master, or the like, cannot do any acts during
the vacancy of the headship, except only appointing another:
neither are they then capable of receiving a grant; for such corporation
is incomplete without a head[p]. But there may be a cor-*
*poration aggregate constituted without a head[q]: as the collegiate
church of Southwell in Nottinghamshire, which consists only of
prebendaries; and the governors of the Charter-house, London,
who have no president or superior, but are all of equal authority.
In aggregate corporations also, the act of the major part is esteemed
the act of the whole[r]. By the civil law this major part must
have consisted of two thirds of the whole; else no act could be
performed[s]: which perhaps may be one reason why they required
three at least to make a corporation. But, with us, any majority
is sufficient to determine the act of the whole body. And whereas,
notwithstanding the law stood thus, some founders of corporations
had made statutes in derogation of the common law, making
very frequently the unanimous assent of the society to be necessary
to any corporate act; (which king Henry VIII found to be a great
obstruction to his projected scheme of obtaining a surrender of
the lands of ecclesiastical corporations) it was therefore enacted
by statute 33 Hen. VIII. c. 27. that all private statutes shall be
utterly void, whereby any grant or election, made by the head,
with the concurrence of the major part of the body, is liable
to be obstructed by any one or more, being the minority: but
this statute extends not to any negative or necessary voice, given
by the founder to the head of any such society.

We before observed that it was incident to every corporation,
to have a capacity to purchase lands for themselves and successors:
and this is regularly true at the common law[t]. But they are excepted
out of the statute of wills[u]; so that no devise of lands to a
corporation by will is good: except for charitable uses, by statute
43 Eliz. c. 4[w]. And also, by a great variety of statutes[x], their
privilege even of purchasing from any living grantor is greatly
abridged; so that now a corporation, either ecclesiastical or lay,
must have a licence from the king to purchase[y], before they can
exert that capacity which is vested in them by the common law:
nor is even this in all cases sufficient. These statutes are generally
called the statutes of mortmain; all purchases made by corporate
bodies being said to be purchases in mortmain, in mortua
manu: for the reason of which appellation sir Edward Coke[z] offers
many conjectures; but there is one which seems more probable
than any that he has given us: viz. that these purchases
being usually made by ecclesiastical bodies, the members of which
(being professed) were reckoned dead persons in law, land therefore,
holden by them, might with great propriety be said to be
held in mortua manu.

I shall defer the more particular exposition of these statutes
of mortmain, till the next book of these commentaries,
when we shall consider the nature and tenures of estates; and
also the exposition of those disabling statutes of queen Elizabeth,
which restrain spiritual and eleemosynary corporations from aliening
such lands as they are present in legal possession of: only
mentioning them in this place, for the sake of regularity, as
statutable incapacities incident and relative to corporations.

The general duties of all bodies politic, considered in their
corporate capacity, may, like those of natural persons, be reduced
to this single one; that of acting up to the end or design, whatever
it be, for which they were created by their founder.

III. I proceed therefore next to enquire, how these corporations
may be visited. For corporations being composed of individuals,
subject to human frailties, are liable, as well as private
persons, to deviate from the end of their institution. And for that
reason the law has provided proper persons to visit, enquire into,
and correct all irregularities that arise in such corporations, either
sole or aggregate, and whether ecclesiastical, civil, or eleemosynary.
With regard to all ecclesiastical corporations, the ordinary
is their visitor, so constituted by the canon law, and from thence
derived to us. The pope formerly, and now the king, as supreme
ordinary, is the visitor of the arch-bishop or metropolitan; the
metropolitan has the charge and coercion of all his suffragan bishops;
and the bishops in their several dioceses are the visitors of
all deans and chapters, of all parsons and vicars, and of all other
spiritual corporations. With respect to all lay corporations, the
founder, his heirs, or assigns, are the visitors, whether the foundation
be civil or eleemosynary; for in a lay incorporation the ordinary
neither can nor ought to visit[a].

I know it is generally said, that civil corporations are subject
to no visitation, but merely to the common law of the land; and
this shall be presently explained. But first, as I have laid it down
as a rule that the founder, his heirs, or assigns, are the visitors
of all lay-corporations, let us enquire what is meant by the founder.
The founder of all corporations in the strictest and original
sense is the king alone, for he only can incorporate a society:
and in civil incorporations, such as mayor and commonalty, &c,
where there are no possessions or endowments given to the body,
there is no other founder but the king: but in eleemosynary
foundations, such as colleges and hospitals, where there is an endowment
of lands, the law distinguishes, and makes two species
of foundation; the one fundatio incipiens, or the incorporation, in
which sense the king is the general founder of all colleges and
hospitals; the other fundatio perficiens, or the dotation of it, in
which sense the first gift of the revenues is the foundation, and
he who gives them is in law the founder: and it is in this last
sense that we generally call a man the founder of a college or hospital[b].
But here the king has his prerogative: for, if the king
and a private man join in endowing an eleemosynary foundation,
the king alone shall be the founder of it. And, in general, the
king being the sole founder of all civil corporations, and the en-*
*dower the perficient founder of all eleemosynary ones, the right
of visitation of the former results, according to the rule laid down,
to the king; and of the latter, to the patron or endower.

The king being thus constituted by law the visitor of all civil
corporations, the law has also appointed the place, wherein he
shall exercise this jurisdiction: which is the court of king's bench;
where, and where only, all misbehaviours of this kind of corporations
are enquired into and redressed, and all their controversies
decided. And this is what I understand to be the meaning of our
lawyers, when they say that these civil corporations are liable to
no visitation; that is, that the law having by immemorial usage
appointed them to be visited and inspected by the king their
founder, in his majesty's court of king's bench, according to the
rules of the common law, they ought not to be visited elsewhere,
or by any other authority. And this is so strictly true, that though
the king by his letters patent had subjected the college of physicians
to the visitation of four very respectable persons, the lord
chancellor, the two chief justices, and the chief baron; though
the college had accepted this charter with all possible marks of
acquiescence, and had acted under it for near a century; yet, in
1753, the authority of this provision coming in dispute, on an
appeal preferred to these supposed visitors, they directed the legality
of their own appointment to be argued: and, as this college
was a mere civil, and not an eleemosynary foundation, they
at length determined, upon several days solemn debate, that they
had no jurisdiction as visitors; and remitted the appellant (if
aggrieved) to his regular remedy in his majesty's court of king's
bench.

As to eleemosynary corporations, by the dotation the founder
and his heirs are of common right the legal visitors, to see that
that property is rightly employed, which would otherwise have
descended to the visitor himself: but, if the founder has appointed
and assigned any other person to be visitor, then his assignee
so appointed is invested with all the founder's power, in exclusion
of his heir. Eleemosynary corporations are chiefly hospitals, or
colleges in the university. These were all of them considered by
the popish clergy, as of mere ecclesiastical jurisdiction: however,
the law of the land judged otherwise; and, with regard to
hospitals, it has long been held[c], that if the hospital be spiritual,
the bishop shall visit; but if lay, the patron. This right of lay
patrons was indeed abridged by statute 2 Hen. V. c. 1. which ordained,
that the ordinary should visit all hospitals founded by subjects;
though the king's right was reserved, to visit by his commissioners
such as were of royal foundation. But the subject's
right was in part restored by statute 14 Eliz. c. 5. which directs
the bishop to visit such hospitals only, where no visitor is appointed
by the founders thereof: and all the hospitals founded
by virtue of the statute 39 Eliz. c. 5. are to be visited by such
persons as shall be nominated by the respective founders. But
still, if the founder appoints nobody, the bishop of the diocese
must visit[d].

Colleges in the universities (whatever the common law
may now, or might formerly, judge) were certainly considered
by the popish clergy, under whose direction they were, as ecclesiastical,
or at least as clerical, corporations; and therefore the
right of visitation was claimed by the ordinary of the diocese.
This is evident, because in many of our most ancient colleges,
where the founder had a mind to subject them to a visitor of his
own nomination, he obtained for that purpose a papal bulle to
exempt them from the jurisdiction of the ordinary; several of
which are still preserved in the archives of the respective societies.
And I have reason to believe, that in one of our colleges, (wherein
the bishop of that diocese, in which Oxford was formerly comprized,
has immemorially exercised visitatorial authority) there is
no special visitor appointed by the college statutes: so that the
bishop's interposition can be ascribed to nothing else, but his supposed
title as ordinary to visit this, among other ecclesiastical
foundations. And it is not impossible, that the number of col-*
*leges in Cambridge, which are visited by the bishop of Ely, may
in part be derived from the same original.

But, whatever might be formerly the opinion of the clergy,
it is now held as established common law, that colleges are lay-*corporations,
though sometimes totally composed of ecclesiastical
persons; and that the right of visitation does not arise from any
principles of the canon law, but of necessity was created by the
common law[e]. And yet the power and jurisdiction of visitors in
colleges was left so much in the dark at common law, that the
whole doctrine was very unsettled till king William's time; in
the sixth year of whose reign, the famous case of Philips and Bury
happened[f]. In this the main question was, whether the sentence
of the bishop of Exeter, who (as visitor) had deprived doctor
Bury the rector of Exeter college, could be examined and redressed
by the court of king's bench. And the three puisne judges
were of opinion, that it might be reviewed, for that the visitor's
jurisdiction could not exclude the common law; and accordingly
judgment was given in that court. But the lord chief justice,
Holt, was of a contrary opinion; and held, that by the common
law the office of visitor is to judge according to the statutes of
the college, and to expel and deprive upon just occasions, and to
hear all appeals of course; and that from him, and him only,
the party grieved ought to have redress; the founder having reposed
in him so entire a confidence, that he will administer justice
impartially, that his determinations are final, and examinable
in no other court whatsoever. And, upon this, a writ of error
being brought in the house of lords, they reversed the judgment
of the court of king's bench, and concurred in sir John Holt's
opinion. And to this leading case all subsequent determinations
have been conformable. But, where the visitor is under a temporary
disability, there the court of king's bench will interpose, to
prevent a defect of justice. Thus the bishop of Chester is visitor
of Manchester college: but, happening also to be warden, the
court held that his power was suspended during the union of those
offices; and therefore issued a peremptory mandamus to him, as
warden, to admit a person intitled to a chaplainship[g]. Also it is
said[h], that if a founder of an eleemosynary foundation appoints
a visitor, and limits his jurisdiction by rules and statutes, if the
visitor in his sentence exceeds those rules, an action lies against
him; but it is otherwise, where he mistakes in a thing within
his power.

IV. We come now, in the last place, to consider how corporations
may be dissolved. Any particular member may be dis-*franchised,
or lose his place in the corporation, by acting contrary
to the laws of the society, or the laws of the land; or he
may resign it by his own voluntary act[i]. But the body politic
may also itself be dissolved in several ways; which dissolution is
the civil death of the corporation: and in this case their lands
and tenements shall revert to the person, or his heirs, who granted
them to the corporation; for the law doth annex a condition to
every such grant, that if the corporation be dissolved, the grantor
shall have the lands again, because the cause of the grant faileth[k].
The grant is indeed only during the life of the corporation;
which may endure for ever: but, when that life is determined by
the dissolution of the body politic, the grantor takes it back by
reversion, as in the case of every other grant for life. And hence
it appears how injurious, as well to private as public rights, those
statutes were, which vested in king Henry VIII, instead of the
heirs of the founder, the lands of the dissolved monasteries. The
debts of a corporation, either to or from it, are totally extinguished
by it's dissolution; so that the members thereof cannot
recover, or be charged with them, in their natural capacities[l]:
agreeable to that maxim of the civil law[m], "si quid universitati
debetur, singulis non debetur; nec, quod debet universitas, singuli
debent."

A corporation may be dissolved, 1. By act of parliament,
which is boundless in it's operations; 2. By the natural
death of all it's members, in case of an aggregate corporation;
3. By surrender of it's franchises into the hands of the king,
which is a kind of suicide; 4. By forfeiture of it's charter,
through negligence or abuse of it's franchises; in which case
the law judges that the body politic has broken the condition
upon which it was incorporated, and thereupon the incorporation
is void. And the regular course is to bring a writ of quo warranto,
to enquire by what warrant the members now exercise their corporate
power, having forfeited it by such and such proceedings.
The exertion of this act of law, for the purposes of the state, in
the reigns of king Charles and king James the second, particularly
by seising[**] the charter of the city of London, gave great and just
offence; though perhaps, in strictness of law, the proceedings
were sufficiently regular: but now[n] it is enacted, that the charter
of the city of London shall never more be forfeited for any
cause whatsoever. And, because by the common law corporations
were dissolved, in case the mayor or head officer was not duly
elected on the day appointed in the charter or established by prescription,
it is now provided[o], that for the future no corporation
shall be dissolved upon that account; and ample directions are
given for appointing a new officer, in case there be no election,
or a void one, made upon the charter or prescriptive day.


End of section 48

End of the first book of the Commentaries on the Laws of England, by William Blackstone.

Blackstone ss47

"Section 47. Part 1 of Chapter 18 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 18, Part 1"



Chapter the eighteenth.

Of CORPORATIONS.


We have hitherto considered persons in their natural capacities,
and have treated of their rights and duties. But,
as all personal rights die with the person; and, as the necessary
forms of investing a series of individuals, one after another, with
the same identical rights, would be very inconvenient, if not impracticable;
it has been found necessary, when it is for the advantage
of the public to have any particular rights kept on foot
and continued, to constitute artificial persons, who may maintain
a perpetual succession, and enjoy a kind of legal immortality.

These artificial persons are called bodies politic, bodies corporate,
(corpora corporata) or corporations: of which there is a
great variety subsisting, for the advancement of religion, of learning,
and of commerce; in order to preserve entire and for ever
those rights and immunities, which, if they were granted only
to those individuals of which the body corporate is composed,
would upon their death be utterly lost and extinct. To shew the
advantages of these incorporations, let us consider the case of a
college in either of our universities, founded ad studendum et orandum,
for the encouragement and support of religion and learning.
If this was a mere voluntary assembly, the individuals which compose
it might indeed read, pray, study, and perform scholastic
exercises together, so long as they could agree to do so: but they
could neither frame, nor receive, any laws or rules of their conduct;
none at least, which would have any binding force, for
want of a coercive power to create a sufficient obligation. Neither
could they be capable of retaining any privileges or immunities:
for, if such privileges be attacked, which of all this unconnected
assembly has the right, or ability, to defend them?
And, when they are dispersed by death or otherwise, how shall
they transfer these advantages to another set of students, equally
unconnected as themselves? So also, with regard to holding estates
or other property, if land be granted for the purposes of religion
or learning to twenty individuals not incorporated, there is no
legal way of continuing the property to any other persons for the
same purposes, but by endless conveyances from one to the other,
as often as the hands are changed. But, when they are consolidated
and united into a corporation, they and their successors are
then considered as one person in law: as one person, they have
one will, which is collected from the sense of the majority of the
individuals: this one will may establish rules and orders for the
regulation of the whole, which are a sort of municipal laws of
this little republic; or rules and statutes may be prescribed to it
at it's creation, which are then in the place of natural laws: the
privileges and immunities, the estates and possessions, of the corporation,
when once vested in them, will be for ever vested,
without any new conveyance to new successions; for all the individual
members that have existed from the foundation to the present
time, or that shall ever hereafter exist, are but one person in
law, a person that never dies: in like manner as the river Thames
is still the same river, though the parts which compose it are
changing every instant.

The honour of originally inventing these political constitutions
entirely belongs to the Romans. They were introduced, as
Plutarch says, by Numa; who finding, upon his accession, the
city torn to pieces by the two rival factions of Sabines, and Romans,
thought it a prudent and politic measure, to subdivide these
two into many smaller ones, by instituting separate societies of
every manual trade and profession. They were afterwards much
considered by the civil law[a], in which they were called universitates,
as forming one whole out of many individuals; or collegia,
from being gathered together: they were adopted also by the
canon law, for the maintenance of ecclesiastical discipline; and
from them our spiritual corporations are derived. But our laws
have considerably refined and improved upon the invention, according
to the usual genius of the English nation: particularly
with regard to sole corporations, consisting of one person only,
of which the Roman lawyers had no notion; their maxim being
that "tres faciunt collegium[b]." Though they held, that if a corporation,
originally consisting of three persons, be reduced to one,
"si universitas ad unum redit," it may still subsist as a corporation,
"et stet nomen universitatis[c]."

Before we proceed to treat of the several incidents of corporations,
as regarded by the laws of England, let us first take a
view of the several sorts of them; and then we shall be better
enabled to apprehend their respective qualities.

The first division of corporations is into aggregate and sole.
Corporations aggregate consist of many persons united together
into one society, and are kept up by a perpetual succession of
members, so as to continue for ever: of which kind are the
mayor and commonalty of a city, the head and fellows of a college,
the dean and chapter of a cathedral church. Corporations
sole consist of one person only and his successors, in some particular
station, who are incorporated by law, in order to give them
some legal capacities and advantages, particularly that of perpetuity,
which in their natural persons they could not have had.
In this sense the king is a sole corporation[d]: so is a bishop: so
are some deans, and prebendaries, distinct from their several
chapters: and so is every parson and vicar. And the necessity,
or at least use, of this institution will be very apparent, if we
consider the case of a parson of a church. At the original endowment
of parish churches, the freehold of the church, the churchyard,
the parsonage house, the glebe, and the tithes of the parish,
were vested in the then parson by the bounty of the donor,
as a temporal recompence to him for his spiritual care of the inhabitants,
and with intent that the same emoluments should ever
afterwards continue as a recompense for the same care. But how
was this to be effected? The freehold was vested in the parson;
and, if we suppose it vested in his natural capacity, on his death
it might descend to his heir, and would be liable to his debts and
incumbrances: or, at best, the heir might be compellable, at
some trouble and expense, to convey these rights to the succeeding
incumbent. The law therefore has wisely ordained, that the
parson, quatenus parson, shall never die, any more than the king;
by making him and his successors a corporation. By which means
all the original rights of the parsonage are preserved entire to the
successor: for the present incumbent, and his predecessor who
lived seven centuries ago, are in law one and the same person;
and what was given to the one was given to the other also.

Another division of corporations, either sole or aggregate,
is into ecclesiastical and lay. Ecclesiastical corporations are where
the members that compose it are entirely spiritual persons; such
as bishops; certain deans, and prebendaries; all archdeacons,
parsons, and vicars; which are sole corporations: deans and
chapters at present, and formerly prior and convent, abbot and
monks, and the like, bodies aggregate. These are erected for the
furtherance of religion, and the perpetuating the rights of the
church. Lay corporations are of two sorts, civil and eleemosynary.
The civil are such as are erected for a variety of temporal purposes.
The king, for instance, is made a corporation to prevent in
general the possibility of an interregnum or vacancy of the throne,
and to preserve the possessions of the crown entire; for, immediately
upon the demise of one king, his successor is, as we have
formerly seen, in full possession of the regal rights and dignity.
Other lay corporations are erected for the good government of a
town or particular district, as a mayor and commonalty, bailiff
and burgesses, or the like: some for the advancement and regulation
of manufactures and commerce; as the trading companies
of London, and other towns: and some for the better carrying
on of divers special purposes; as churchwardens, for conservation
of the goods of the parish; the college of physicians and company
of surgeons in London, for the improvement of the medical
science; the royal society, for the advancement of natural
knowlege; and the society of antiquarians, for promoting the
study of antiquities. And among these I am inclined to think the
general corporate bodies of the universities of Oxford and Cambridge
must be ranked: for it is clear they are not spiritual or
ecclesiastical corporations, being composed of more laymen than
clergy: neither are they eleemosynary foundations, though stipends
are annexed to particular magistrates and professors, any
more than other corporations where the acting officers have standing
salaries; for these are rewards pro opera et labore, not charitable
donations only, since every stipend is preceded by service and
duty: they seem therefore to be merely civil corporations. The
eleemosynary sort are such as are constituted for the perpetual distribution
of the free alms, or bounty, of the founder of them
to such persons as he has directed. Of this kind are all hospitals
for the maintenance of the poor, sick, and impotent; and all
colleges, both in our universities and out[e] of them: which colleges
are founded for two purposes; 1. For the promotion of piety
and learning by proper regulations and ordinances. 2. For imparting
assistance to the members of those bodies, in order to
enable them to prosecute their devotion and studies with greater
ease and assiduity. And all these eleemosynary corporations are,
strictly speaking, lay and not ecclesiastical, even though composed
of ecclesiastical persons[f], and although they in some things
partake of the nature, privileges, and restrictions of ecclesiastical
bodies.

Having thus marshalled the several species of corporations,
let us next proceed to consider, 1. How corporations, in general,
may be created. 2. What are their powers, capacities, and incapacities.
3. How corporations are visited. And 4. How they
may be dissolved.

I. Corporations, by the civil law, seem to have been
created by the mere act, and voluntary association of their members;
provided such convention was not contrary to law, for then
it was illicitum collegium[g]. It does not appear that the prince's
consent was necessary to be actually given to the foundation of
them; but merely that the original founders of these voluntary
and friendly societies (for they were little more than such) should
not establish any meetings in opposition to the laws of the state.

But, with us in England, the king's consent is absolutely necessary
to the erection of any corporation, either impliedly or expressly
given. The king's implied consent is to be found in corporations
which exist by force of the common law, to which our
former kings are supposed to have given their concurrence; common
law being nothing else but custom, arising from the universal
agreement of the whole community. Of this sort are the
king himself, all bishops, parsons, vicars, churchwardens, and
some others; who by common law have ever been held (as far as
our books can shew us) to have been corporations, virtute officii:
and this incorporation is so inseparably annexed to their offices,
that we cannot frame a complete legal idea of any of these persons,
but we must also have an idea of a corporation, capable to
transmit his rights to his successors, at the same time. Another
method of implication, whereby the king's consent is presumed,
is as to all corporations by prescription, such as the city of London,
and many others[h], which have existed as corporations, time
whereof the memory of man runneth not to the contrary; and
therefore are looked upon in law to be well created. For though
the members thereof can shew no legal charter of incorporation,
yet in cases of such high antiquity the law presumes there once
was one; and that by the variety of accidents, which a length of
time may produce, the charter is lost or destroyed. The methods,
by which the king's consent is expressly given, are either by act
of parliament or charter. By act of parliament, of which the
royal assent is a necessary ingredient, corporations may undoubtedly
be created[i]: but it is observable, that most of those statutes,
which are usually cited as having created corporations, do either
confirm such as have been before created by the king; as in the
case of the college of physicians, erected by charter 10 Hen. VIII[k],
which charter was afterwards confirmed in parliament[l]; or, they
permit the king to erect a corporation in futuro with such and
such powers; as is the case of the bank of England[m], and the
society of the British fishery[n]. So that the immediate creative act
is usually performed by the king alone, in virtue of his royal
prerogative[o].

All the other methods therefore whereby corporations exist,
by common law, by prescription, and by act of parliament, are
for the most part reducible to this of the king's letters patent,
or charter of incorporation. The king's creation may be
performed by the words "creamus, erigimus, fundamus, incorporamus,"
or the like. Nay it is held, that if the king grants to a
set of men to have gildam mercatoriam, a mercantile meeting or
assembly[p], this is alone sufficient to incorporate and establish them
for ever[q].

The parliament, we observed, by it's absolute and transcendent
authority, may perform this, or any other act whatsoever:
and actually did perform it to a great extent, by statute 39 Eliz.
c. 5. which incorporated all hospitals and houses of correction
founded by charitable persons, without farther trouble: and the
same has been done in other cases of charitable foundations. But
otherwise it is not usual thus to intrench upon the prerogative of
the crown, and the king may prevent it when he pleases. And,
in the particular instance before-mentioned, it was done, as sir
Edward Coke observes[r], to avoid the charges of incorporation
and licences of mortmain in small benefactions; which in his
days were grown so great, that it discouraged many men to undertake
these pious and charitable works.

The king may grant to a subject the power of erecting corporations[s],
though the contrary was formerly held[t]: that is, he
may permit the subject to name the persons and powers of the
corporation at his pleasure; but it is really the king that erects,
and the subject is but the instrument: for though none but
the king can make a corporation, yet qui facit per alium, facit
per se[v]. In this manner the chancellor of the university of Oxford
has power by charter to erect corporations; and has actually
often exerted it, in the erection of several matriculated companies,
now subsisting, of tradesmen subservient to the students.

When a corporation is erected, a name must be given it;
and by that name alone it must sue, and be sued, and do all legal
acts; though a very minute variation therein is not material[u].
Such name is the very being of it's constitution; and, though it
is the will of the king that erects the corporation, yet the name
is the knot of it's combination, without which it could not perform
it's corporate functions[w]. The name of incorporation, says
sir Edward Coke, is as a proper name, or name of baptism; and
therefore when a private founder gives his college or hospital a
name, he does it only as godfather; and by that same name the
king baptizes the incorporation[x].



End of section 47

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Chapter the seventeenth.

Of GUARDIAN and WARD.


The only general private relation, now remaining to be discussed,
is that of guardian and ward; which bears a very
near resemblance to the last, and is plainly derived out of it: the
guardian being only a temporary parent; that is, for so long
time as the ward is an infant, or under age. In examining this
species of relationship, I shall first consider the different kinds of
guardians, how they are appointed, and their power and duty:
next, the different ages of persons, as defined by the law: and,
lastly, the privileges and disabilities of an infant, or one under
age and subject to guardianship.

1. The guardian with us performs the office both of the tutor
and curator of the Roman laws; the former of which had
the charge of the maintenance and education of the minor, the
latter the care of his fortune; or, according to the language of
the court of chancery, the tutor was the committee of the person,
the curator the committee of the estate. But this office was frequently
united in the civil law[a]; as it is always in our law with
regard to minors, though as to lunatics and idiots it is commonly
kept distinct.

Of the several species of guardians, the first are guardians by
nature: viz. the father and (in some cases) the mother of the
child. For, if an estate be left to an infant, the father is by common
law the guardian, and must account to his child for the profits[b].
And, with regard to daughters, it seems by construction of
the statute 4 & 5 Ph. & Mar. c. 8. that the father might by deed
or will assign a guardian to any woman-child under the age of
sixteen, and if none be so assigned, the mother shall in this case
be guardian[c]. There are also guardians for nurture[d], which are,
of course, the father or mother, till the infant attains the age of
fourteen years[e]: and, in default of father or mother, the ordinary
usually assigns some discreet person to take care of the infant's
personal estate, and to provide for his maintenance and education[f].
Next are guardians in socage, (an appellation which will
be fully explained in the second book of these commentaries) who
are also called guardians by the common law. These take place only
when the minor is entitled to some estate in lands, and then by
the common law the guardianship devolves upon his next of kin,
to whom the inheritance cannot possibly descend; as, where the
estate descended from his father, in this case his uncle by the
mother's side cannot possibly inherit this estate, and therefore
shall be the guardian[g]. For the law judges it improper to trust
the person of an infant in his hands, who may by possibility become
heir to him; that there may be no temptation, nor even
suspicion of temptation, for him to abuse his trust[h]. The Roman
laws proceed on a quite contrary principle, committing the
care of the minor to him who is the next to succeed to the inheritance,
presuming that the next heir would take the best care of
an estate, to which he has a prospect of succeeding: and this
they boast to be "summa providentia[i]." But in the mean time
they forget, how much it is the guardian's interest to remove the
incumbrance of his pupil's life from that estate, for which he is
supposed to have so great a regard[k]. And this affords Fortescue[l],
and sir Edward Coke[m], an ample opportunity for triumph; they
affirming, that to commit the custody of an infant to him that is
next in succession, is "quasi agnum committere lupo, ad devorandum[n]."
These guardians in socage, like those for nurture, continue
only till the minor is fourteen years of age; for then, in
both cases, he is presumed to have discretion, so far as to choose
his own guardian. This he may do, unless one be appointed by
father, by virtue of the statute 12 Car. II. c. 24. which, considering
the imbecillity of judgment in children of the age of fourteen,
and the abolition of guardianship in chivalry (which lasted
till the age of twenty one, and of which we shall speak hereafter)
enacts, that any father, under age or of full age, may by deed
or will dispose of the custody of his child, either born or unborn,
to any person, except a popish recusant, either in possession or reversion,
till such child attains the age of one and twenty years.
These are called guardians by statute, or testamentary guardians.
There are also special guardians by custom of London, and other
places[o]; but they are particular exceptions, and do not fall under
the general law.

The power and reciprocal duty of a guardian and ward are
the same, pro tempore, as that of a father and child; and therefore
I shall not repeat them: but shall only add, that the guardian,
when the ward comes of age, is bound to give him an account
of all that he has transacted on his behalf, and must answer for
all losses by his wilful default or negligence. In order therefore
to prevent disagreeable contests with young gentlemen, it has become
a practice for many guardians, of large estates especially, to
indemnify themselves by applying to the court of chancery, acting
under it's direction, and accounting annually before the officers
of that court. For the lord chancellor is, by right derived
from the crown, the general and supreme guardian of all infants,
as well as idiots and lunatics; that is, of all such persons as have
not discretion enough to manage their own concerns. In case
therefore any guardian abuses his trust, the court will check and
punish him; nay sometimes proceed to the removal of him, and
appoint another in his stead[p].

2. Let us next consider the ward, or person within age, for
whose assistance and support these guardians are constituted by
law; or who it is, that is said to be within age. The ages of
male and female are different for different purposes. A male at
twelve years old may take the oath of allegiance; at fourteen is
at years of discretion, and therefore may consent or disagree to
marriage, may choose his guardian, and, if his discretion be actually
proved, may make his testament of his personal estate; at
seventeen may be an executor; and at twenty one is at his own
disposal, and may aliene his lands, goods, and chattels. A female
also at seven years of age may be betrothed or given in marriage;
at nine is entitled to dower; at twelve is at years of maturity, and
therefore may consent or disagree to marriage, and, if proved to
have sufficient discretion, may bequeath her personal estate; at
fourteen is at years of legal discretion, and may choose a guardian;
at seventeen may be executrix; and at twenty one may dispose of
herself and her lands. So that full age in male or female, is twenty
one years, which age is completed on the day preceding the anniversary
of a person's birth[q]; who till that time is an infant, and
so stiled in law. Among the antient Greeks and Romans women
were never of age, but subject to perpetual guardianship[r], unless
when married, "nisi convenissent in manum viri:" and, when that
perpetual tutelage wore away in process of time, we find that, in
females as well as males, full age was not till twenty five years[s].
Thus, by the constitutions of different kingdoms, this period,
which is merely arbitrary, and juris positivi, is fixed at different
times. Scotland agrees with England in this point; (both probably
copying from the old Saxon constitutions on the continent,
which extended the age of minority "ad annum vigesimum primum,
et eo usque juvenes sub tutelam reponunt[t]") but in Naples they
are of full age at eighteen; in France, with regard to marriage,
not till thirty; and in Holland at twenty five.

3. Infants have various privileges, and various disabilities:
but their very disabilities are privileges; in order to secure them
from hurting themselves by their own improvident acts. An infant
cannot be sued but under the protection, and joining the
name, of his guardian; for he is to defend him against all attacks
as well by law as otherwise[u]: but he may sue either by his
guardian, or prochein amy, his next friend who is not his guardian.
This prochein amy may be any person who will undertake the infant's
cause; and it frequently happens, that an infant, by his
prochein amy, institutes a suit in equity against a fraudulent guardian.
In criminal cases, an infant of the age of fourteen years may be
capitally punished for any capital offence[w]: but under the age of
seven he cannot. The period between seven and fourteen is subject
to much incertainty: for the infant shall, generally speaking,
be judged prima facie innocent; yet if he was doli capax, and
could discern between good and evil at the time of the offence
committed, he may be convicted and undergo judgment and execution
of death, though he hath not attained to years of puberty
or discretion[x]. And sir Matthew Hale gives us two instances,
one of a girl of thirteen, who was burned for killing her mistress;
another of a boy still younger, that had killed his companion,
and hid himself, who was hanged; for it appeared by his
hiding that he knew he had done wrong, and could discern between
good and evil; and in such cases the maxim of law is, that
malitia supplet aetatem.

With regard to estates and civil property, an infant hath
many privileges, which will be better understood when we come
to treat more particularly of those matters: but this may be said
in general, that an infant shall lose nothing by non-claim, or neglect
of demanding his right; nor shall any other laches or negligence
be imputed to an infant, except in some very particular
cases.

It is generally true, that an infant can neither aliene his
lands, nor do any legal act, nor make a deed, nor indeed any
manner of contract, that will bind him. But still to all these rules
there are some exceptions; part of which were just now mentioned
in reckoning up the different capacities which they assume
at different ages: and there are others, a few of which it may
not be improper to recite, as a general specimen of the whole.
And, first, it is true, that infants cannot aliene their estates:
but[y] infant trustees, or mortgagees, are enabled to convey, under
the direction of the court of chancery or exchequer, the estates
they hold in trust or mortgage, to such person as the court shall
appoint. Also it is generally true, that an infant can do no legal
act: yet an infant who has an advowson, may present to the
benefice when it becomes void[z]. For the law in this case dispenses
with one rule, in order to maintain others of far greater
consequence: it permits an infant to present a clerk (who, if
unfit, may be rejected by the bishop) rather than either suffer
the church to be unserved till he comes of age, or permit the in-*
*fant to be debarred of his right by lapse to the bishop. An infant
may also purchase lands, but his purchase is incomplete: for,
when he comes to age, he may either agree or disagree to it, as
he thinks prudent or proper, without alleging any reason; and
so may his heirs after him, if he dies without having completed
his agreement[a]. It is, farther, generally true, that an infant,
under twenty one, can make no deed that is of any force or effect:
yet[b] he may bind himself apprentice by deed indented, or
indentures, for seven years; and[c] he may by deed or will appoint
a guardian to his children, if he has any. Lastly, it is generally
true, that an infant can make no other contract that will bind
him: yet he may bind himself to pay for his necessary meat,
drink, apparel, physic, and such other necessaries; and likewise
for his good teaching and instruction, whereby he may profit
himself afterwards[d]. And thus much, at present, for the privileges
and disabilities of infants.



End of section 46

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Chapter the sixteenth.

Of PARENT and CHILD.


The next, and the most universal relation in nature, is immediately
derived from the preceding, being that between
parent and child.

Children are of two sorts; legitimate, and spurious, or
bastards: each of which we shall consider in their order; and
first of legitimate children.

I.[**1?] A legitimate child is he that is born in lawful wedlock,
or within a competent time afterwards. "Pater est quem
nuptiae demonstrant," is the rule of the civil law[a]; and this
holds with the civilians, whether the nuptials happen before, or
after, the birth of the child. With us in England the rule is
narrowed, for the nuptials must be precedent to the birth; of
which more will be said when we come to consider the case of
bastardy. At present let us enquire into, 1. The legal duties of
parents to their legitimate children. 2. Their power over them.
3. The duties of such children to their parents.

1. And, first, the duties of parents to legitimate children:
which principally consist in three particulars; their maintenance,
their protection, and their education.

The duty of parents to provide for the maintenance of their
children is a principle of natural law; an obligation, says Puffendorf[b],
laid on them not only by nature herself, but by their
own proper act, in bringing them into the world: for they would
be in the highest manner injurious to their issue, if they only
gave the children life, that they might afterwards see them perish.
By begetting them therefore they have entered into a voluntary
obligation, to endeavour, as far as in them lies, that the life which
they have bestowed shall be supported and preserved. And thus
the children will have a perfect right of receiving maintenance
from their parents. And the president Montesquieu[c] has a very
just observation upon this head: that the establishment of marriage
in all civilized states is built on this natural obligation of the
father to provide for his children; for that ascertains and makes
known the person who is bound to fulfil this obligation: whereas,
in promiscuous and illicit conjunctions, the father is unknown;
and the mother finds a thousand obstacles in her way;--shame,
remorse, the constraint of her sex, and the rigor of laws;--that
stifle her inclinations to perform this duty: and besides, she
generally wants ability.

The municipal laws of all well-regulated states have taken
care to enforce this duty: though providence has done it more
effectually than any laws, by implanting in the breast of every
parent that natural [Greek: sorgê],[**misprint for storgê?] or insuperable degree of affection,
which not even the deformity of person or mind, not even the
wickedness, ingratitude, and rebellion of children, can totally
suppress or extinguish.

The civil law[d] obliges the parent to provide maintenance for
his child; and, if he refuses, "judex de ea re cognoscet." Nay, it
carries this matter so far, that it will not suffer a parent at his
death totally to disinherit his child, without expressly giving his
reason for so doing; and there are fourteen such reasons reckoned
up[e] which may justify such disinherison. If the parent alleged
no reason, or a bad, or false one, the child might set the will aside,
tanquam testamentum inofficiosum, a testament contrary to the natural
duty of the parent. And it is remarkable under what colour
the children were to move for relief in such a case: by suggesting
that the parent had lost the use of his reason, when he made
the inofficious testament. And this, as Puffendorf observes[f], was
not to bring into dispute the testator's power of disinheriting his
own offspring; but to examine the motives upon which he did
it: and, if they were found defective in reason, then to set them
aside. But perhaps this is going rather too far: every man has,
or ought to have, by the laws of society, a power over his own
property: and, as Grotius very well distinguishes[s], natural right
obliges to give a necessary maintenance to children; but what is
more than that, they have no other right to, than as it is given
them by the favour of their parents, or the positive constitutions
of the municipal law.

Let us next see what provision our own laws have made for
this natural duty. It is a principle of law[h], that there is an obligation
on every man to provide for those descended from his
loins: and the manner, in which this obligation shall be performed,
is thus pointed out[i]. The father, and mother, grandfather,
and grandmother of poor impotent persons shall maintain them
at their own charges, if of sufficient ability, according as the
quarter sessions shall direct: and[k] if a parent runs away, and
leaves his children, the churchwardens and overseers of the parish
shall seise his rents, goods, and chattels, and dispose of them towards
their relief. By the interpretations which the courts of
law have made upon these statutes, if a mother or grandmother
marries again, and was before such second marriage of sufficient
ability to keep the child, the husband shall be charged to main-*
*tain it[l]: for this being a debt of hers, when single, shall like
others extend to charge the husband. But at her death, the relation
being dissolved, the husband is under no farther obligation.

No person is bound to provide a maintenance for his issue,
unless where the children are impotent and unable to work, either
through infancy, disease, or accident; and then is only obliged
to find them with necessaries, the penalty on refusal being no
more than 20s. a month. For the policy of our laws, which
are ever watchful to promote industry, did not mean to compel
a father to maintain his idle and lazy children in ease and indolence:
but thought it unjust to oblige the parent, against his will,
to provide them with superfluities, and other indulgences of fortune;
imagining they might trust to the impulse of nature, if
the children were deserving of such favours. Yet, as nothing is
so apt to stifle the calls of nature as religious bigotry, it is enacted[m],
that if any popish parent shall refuse to allow his protestant
child a fitting maintenance, with a view to compel him to change
his religion, the lord chancellor shall by order of court constrain
him to do what is just and reasonable. But this did not extend
to persons of another religion, of no less bitterness and bigotry
than the popish: and therefore in the very next year we find an
instance of a Jew of immense riches, whose only daughter having
embraced christianity, he turned her out of doors; and on her
application for relief, it was held she was intitled to none[n]. But
this gave occasion[o] to another statute[p], which ordains, that if
jewish parents refuse to allow their protestant children a fitting
maintenance, suitable to the fortune of the parent, the lord chancellor
on complaint may make such order therein as he shall see
proper.

Our law has made no provision to prevent the disinheriting
of children by will; leaving every man's property in his own
disposal, upon a principle of liberty in this, as well as every other,
action: though perhaps it had not been amiss, if the parent had
been bound to leave them at the least a necessary subsistence. By
the custom of London indeed, (which was formerly universal
throughout the kingdom) the children of freemen are entitled to
one third of their father's effects, to be equally divided among
them; of which he cannot deprive them. And, among persons
of any rank or fortune, a competence is generally provided for
younger children, and the bulk of the estate settled upon the
eldest, by the marriage-articles. Heirs also, and children, are
favourites of our courts of justice, and cannot be disinherited by
any dubious or ambiguous words; there being required the utmost
certainty of the testator's intentions to take away the right
of an heir[q].

From the duty of maintenance we may easily pass to that of
protection; which is also a natural duty, but rather permitted than
enjoined by any municipal laws: nature, in this respect, working
so strongly as to need rather a check than a spur. A parent
may, by our laws, maintain and uphold his children in their lawsuits,
without being guilty of the legal crime of maintaining
quarrels[r]. A parent may also justify an assault and battery in defence
of the persons of his children[s]: nay, where a man's son
was beaten by another boy, and the father went near a mile to
find him, and there revenged his son's quarrel by beating the
other boy, of which beating he afterwards died; it was not held
to be murder, but manslaughter merely[t]. Such indulgence does
the law shew to the frailty of human nature, and the workings
of parental affection.

The last duty of parents to their children is that of giving
them an education suitable to their station in life: a duty pointed
out by reason, and of far the greatest importance of any. For,
as Puffendorf very well observes[u], it is not easy to imagine or
allow, that a parent has conferred any considerable benefit upon
his child, by bringing him into the world; if he afterwards entirely
neglects his culture and education, and suffers him to grow
up like a mere beast, to lead a life useless to others, and shameful
to himself. Yet the municipal laws of most countries seem to
be defective in this point, by not constraining the parent to bestow
a proper education upon his children. Perhaps they thought
it punishment enough to leave the parent, who neglects the instruction
of his family, to labour under those griefs and inconveniences,
which his family, so uninstructed, will be sure to bring
upon him. Our laws, though their defects in this particular cannot
be denied, have in one instance made a wise provision for
breeding up the rising generation; since the poor and laborious
part of the community, when past the age of nurture, are taken
out of the hands of their parents, by the statutes for apprenticing
poor children[w]; and are placed out by the public in such a manner,
as may render their abilities, in their several stations, of the
greatest advantage to the commonwealth. The rich indeed are
left at their own option, whether they will breed up their children
to be ornaments or disgraces to their family. Yet in one case,
that of religion, they are under peculiar restrictions: for[x] it is
provided, that if any person sends any child under his government
beyond the seas, either to prevent it's good education in
England, or in order to enter into or reside in any popish college,
or to be instructed, persuaded, or strengthened in the popish religion;
in such case, besides the disabilities incurred by the child
so sent, the parent or person sending shall forfeit 100l. which[y]
shall go to the sole use and benefit of him that shall discover the
offence. And[z] if any parent, or other, shall send or convey any
person beyond sea, to enter into, or be resident in, or trained up
in, any priory, abbey, nunnery, popish university, college, or school,
or house of jesuits, or priests, or in any private popish family, in
order to be instructed, persuaded, or confirmed in the popish religion;
or shall contribute any thing towards their maintenance
when abroad by any pretext whatever, the person both sending
and sent shall be disabled to sue in law or equity, or to be executor
or administrator to any person, or to enjoy any legacy or deed
of gift, or to bear any office in the realm, and shall forfeit all his
goods and chattels, and likewise all his real estate for life.

2. The power of parents over their children is derived from
the former consideration, their duty; this authority being given
them, partly to enable the parent more effectually to perform his
duty, and partly as a recompence for his care and trouble in the
faithful discharge of it. And upon this score the municipal laws
of some nations have given a much larger authority to the parents,
than others. The antient Roman laws gave the father a power
of life and death over his children; upon this principle, that he
who gave had also the power of taking away[a]. But the rigor of
these laws was softened by subsequent constitutions; so that[b] we
find a father banished by the emperor Hadrian for killing his son,
though he had committed a very heinous crime, upon this maxim,
that "patria potestas in pietate debet, non in atrocitate, consistere."
But still they maintained to the last a very large and absolute authority:
for a son could not acquire any property of his own during
the life of his father; but all his acquisitions belonged to the
father, or at least the profits of them for his life[c].

The power of a parent by our English laws is much more
moderate; but still sufficient to keep the child in order and obedience.
He may lawfully correct his child, being under age, in
a reasonable manner[d]; for this is for the benefit of his education.
The consent or concurrence of the parent to the marriage of
his child under age, was also directed by our antient law to be obtained:
but now it is absolutely necessary; for without it the contract
is void[e]. And this also is another means, which the law
has put into the parent's hands, in order the better to discharge
his duty; first, of protecting his children from the snares of artful
and designing persons; and, next, of settling them properly
in life, by preventing the ill consequences of too early and precipitate
marriages. A father has no other power over his sons estate,
than as his trustee or guardian; for, though he may receive
the profits during the child's minority, yet he must account for
them when he comes of age. He may indeed have the benefit of his
children's labour while they live with him, and are maintained
by him: but this is no more than he is entitled to from his apprentices
or servants. The legal power of a father (for a mother,
as such, is entitled to no power, but only to reverence and respect)
the power of a father, I say, over the persons of his children
ceases at the age of twenty one: for they are then enfranchised
by arriving at years of discretion, or that point which the
law has established (as some must necessarily be established) when
the empire of the father, or other guardian, gives place to the
empire of reason. Yet, till that age arrives, this empire of the
father continues even after his death; for he may by his will appoint
a guardian to his children. He may also delegate part of
his parental authority, during his life, to the tutor or schoolmaster
of his child; who is then in loco parentis, and has such a portion
of the power of the parent committed to his charge, viz.
that of restraint and correction, as may be necessary to answer
the purposes for which he is employed.

3. The duties of children to their parents arise from a principle
of natural justice and retribution. For to those, who gave
us existence, we naturally owe subjection and obedience during
our minority, and honour and reverence ever after; they, who
protected the weakness of our infancy, are entitled to our protection
in the infirmity of their age; they who by sustenance and
education have enabled their offspring to prosper, ought in return
to be supported by that offspring, in case they stand in need of
assistance. Upon this principle proceed all the duties of children
to their parents, which are enjoined by positive laws. And the
Athenian laws[f] carried this principle into practice with a scrupulous
kind of nicety: obliging all children to provide for their
father, when fallen into poverty; with an exception to spurious
children, to those whose chastity had been prostituted by consent
of the father, and to those whom he had not put in any way
of gaining a livelyhood. The legislature, says baron Montesquieu[g],
considered, that in the first case the father, being uncertain, had
rendered the natural obligation precarious; that, in the second
case, he had sullied the life he had given, and done his children
the greatest of injuries, in depriving them of their reputation;
and that, in the third case, he had rendered their life (so far as
in him lay) an insupportable burthen, by furnishing them with no
means of subsistence.

Our laws agree with those of Athens with regard to the first
only of these particulars, the case of spurious issue. In the other
cases the law does not hold the tie of nature to be dissolved by
any misbehaviour of the parent; and therefore a child is equally
justifiable in defending the person, or maintaining the cause or
suit, of a bad parent, as a good one; and is equally compellable[h],
if of sufficient ability, to maintain and provide for a wicked and
unnatural progenitor, as for one who has shewn the greatest tenderness
and parental piety.

II. We are next to consider the case of illegitimate children,
or bastards; with regard to whom let us inquire, 1. Who are
bastards. 2. The legal duties of the parents towards a bastard
child. 3. The rights and incapacities attending such bastard
children.

1. Who are bastards. A bastard, by our English laws, is one
that is not only begotten, but born, out of lawful matrimony. The
civil and canon laws do not allow a child to remain a bastard, if
the parents afterwards intermarry[i]: and herein they differ most
materially from our law; which, though not so strict as to require
that the child shall be begotten, yet makes it an indispensable
condition that it shall be born, after lawful wedlock. And the
reason of our English law is surely much superior to that of the
Roman, if we consider the principal end and design of establishing
the contract of marriage, taken in a civil light; abstractedly
from any religious view, which has nothing to do with the legitimacy
or illegitimacy of the children. The main end and design
of marriage therefore being to ascertain and fix upon some certain
person, to whom the care, the protection, the maintenance, and
the education of the children should belong; this end is undoubtedly
better answered by legitimating all issue born after wedlock,
than by legitimating all issue of the same parties, even born before
wedlock, so as wedlock afterwards ensues: 1. Because of
the very great uncertainty there will generally be, in the proof
that the issue was really begotten by the same man; whereas, by
confining the proof to the birth, and not to the begetting, our
law has rendered it perfectly certain, what child is legitimate,
and who is to take care of the child. 2. Because by the Roman
laws a child may be continued a bastard, or made legitimate, at
the option of the father and mother, by a marriage ex post facto;
thereby opening a door to many frauds and partialities, which by
our law are prevented. 3. Because by those laws a man may remain
a bastard till forty years of age, and then become legitimate,
by the subsequent marriage of his parents; whereby the main
end of marriage, the protection of infants, is totally frustrated.
4. Because this rule of the Roman laws admits of no limitations
as to the time, or number, of bastards so to be legitimated; but
a dozen of them may, twenty years after their birth, by the subsequent
marriage of their parents, be admitted to all the privileges
of legitimate children. This is plainly a great discouragement
to the matrimonial state; to which one main inducement is usually
not only the desire of having children, but also the desire of procreating
lawful heirs. Whereas our constitutions guard against this
indecency, and at the same time give sufficient allowance to the
frailties of human nature. For, if a child be begotten while the
parents are single, and they will endeavour to make an early reparation
for the offence, by marrying within a few months after,
our law is so indulgent as not to bastardize the child, if it be
born, though not begotten, in lawful wedlock: for this is an incident
that can happen but once; since all future children will be
begotten, as well as born, within the rules of honour and civil
society. Upon reasons like these we may suppose the peers to have
acted at the parliament of Merton, when they refused to enact
that children born before marriage should be esteemed legitimate[k].

From what has been said it appears, that all children born
before matrimony are bastards by our law; and so it is of all
children born so long after the death of the husband, that, by the
usual course of gestation, they could not be begotten by him.
But, this being a matter of some uncertainty, the law is not exact
as to a few days[l]. And this gives occasion to a proceeding at
common law, where a widow is suspected to feign herself with
child, in order to produce a supposititious heir to the estate: an
attempt which the rigor of the Gothic constitutions esteemed
equivalent to the most atrocious theft, and therefore punished
with death[m]. In this case with us the heir presumptive may have
a writ de ventre inspiciendo, to examine whether she be with child,
or not[n]; which is entirely conformable to the practice of the civil
law[o]: and, if the widow be upon due examination found not
pregnant, any issue she may afterwards produce, though within
nine months, will be bastard. But if a man dies, and his widow
soon after marries again, and a child is born within such a time,
as that by the course of nature it might have been the child of
either husband; in this case he is said to be more than ordinarily
legitimate; for he may, when he arrives to years of discretion,
choose which of the fathers he pleases[p]. To prevent this, among
other inconveniences, the civil law ordained that no widow should
marry infra annum luctus[q]; a rule which obtained so early as the
reign of Augustus[r], if not of Romulus: and the same constitution
was probably handed down to our early ancestors from
the Romans, during their stay in this island; for we find it established
under the Saxon and Danish governments[s].

As bastards may be born before the coverture, or marriage
state, is begun, or after it is determined, so also children born
during wedlock may in some circumstances be bastards. As if the
husband be out of the kingdom of England (or, as the law
somewhat loosely phrases it, extra quatuor maria) for above nine
months, so that no access to his wife can be presumed, her issue
during that period shall be bastard[t]. But, generally, during the
coverture access of the husband shall be presumed, unless the
contrary can be shewn[u]; which is such a negative as can only be
proved by shewing him to be elsewhere: for the general rule is,
praesumitur pro legitimatione[w]. In a divorce a mensa et thoro, if
the wife breeds children, they are bastards; for the law will presume
the husband and wife conformable to the sentence of separation,
unless access be proved: but, in a voluntary separation by
agreement, the law will suppose access, unless the negative be
shewn[x]. So also if there is an apparent impossibility of procreation
on the part of the husband, as if he be only eight years old,
or the like, there the issue of the wife shall be bastard[y]. Likewise,
in case of divorce in the spiritual court a vinculo matrimonii,
all the issue born during the coverture are bastards[z]; because such
divorce is always upon some cause, that rendered the marriage
unlawful and null from the beginning.

2. Let us next see the duty of parents to their bastard children,
by our law; which is principally that of maintenance. For,
though bastards are not looked upon as children to any civil purposes,
yet the ties of nature, of which maintenance is one, are
not so easily dissolved: and they hold indeed as to many other
intentions; as, particularly, that a man shall not marry his bastard
sister or daughter[a]. The civil law therefore, when it denied
maintenance to bastards begotten under certain atrocious circumstances[b],
was neither consonant to nature, nor reason, however
profligate and wicked the parents might justly be esteemed.

The method in which the English law provides maintenance
for them is as follows[c]. When a woman is delivered, or declares
herself with child, of a bastard, and will by oath before a justice
of peace charge any person having got her with child, the justice
shall cause such person to be apprehended, and commit him till
he gives security, either to maintain the child, or appear at the
next quarter sessions to dispute and try the fact. But if the woman
dies, or is married before delivery, or miscarries, or proves
not to have been with child, the person shall be discharged:
otherwise the sessions, or two justices out of sessions, upon original
application to them, may take order for the keeping of the
bastard, by charging the mother, or the reputed father with the
payment of money or other sustentation for that purpose. And
if such putative father, or lewd mother, run away from the parish,
the overseers by direction of two justices may seize their
rents, goods, and chattels, in order to bring up the said bastard
child. Yet such is the humanity of our laws, that no woman can
be compulsively questioned concerning the father of her child, till
one month after her delivery: which indulgence is however
very frequently a hardship upon parishes, by suffering the parents
to escape.

3. I proceed next to the rights and incapacities which
appertain to a bastard. The rights are very few, being only such
as he can acquire; for he can inherit nothing, being looked upon
as the son of nobody, and sometimes called filius nullius, sometimes
filius populi[d]. Yet he may gain a sirname by reputation[e],
though he has none by inheritance. All other children have a
settlement in their father's parish; but a bastard in the parish
where born, for he hath no father[f]. However, in case of fraud,
as if a woman be sent either by order of justices, or comes to beg
as a vagrant, to a parish which she does not belong to, and drops
her bastard there; the bastard shall, in the first case, be settled in
the parish from whence she was illegally removed[g]; or, in the
latter case, in the mother's own parish, if the mother be apprehended
for her vagrancy[h]. The incapacity of a bastard consists
principally in this, that he cannot be heir to any one, neither can
he have heirs, but of his own body; for, being nullius filius, he
is therefore of kin to nobody, and has no ancestor from whom
any inheritable blood can be derived. A bastard was also, in strictness,
incapable of holy orders; and, though that were dispensed
with, yet he was utterly disqualified from holding any dignity in
the church[i]: but this doctrine seems now obsolete; and in all
other respects, there is no distinction between a bastard and another
man. And really any other distinction, but that of not inheriting,
which civil policy renders necessary, would, with regard
to the innocent offspring of his parents' crimes, be odious,
unjust, and cruel to the last degree: and yet the civil law, so
boasted of for it's equitable decisions, made bastards in some cases
incapable even of a gift from their parents[k]. A bastard may,
lastly, be made legitimate, and capable of inheriting, by the
transcendent power of an act of parliament, and not otherwise[l]:
as was done in the case of John of Gant's bastard children, by a
statute of Richard the second.



End of section 45

Blackstone ss44

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Chapter the fifteenth.

Of HUSBAND and WIFE.


The second private relation of persons is that of marriage,
which includes the reciprocal duties of husband and wife;
or, as most of our elder law books call them, of baron and feme.
In the consideration of which I shall in the first place enquire,
how marriages may be contracted or made; shall next point out
the manner in which they may be dissolved; and shall, lastly,
take a view of the legal effects and consequence of marriage.

I. Our law considers marriage in no other light than as a
civil contract. The holiness of the matrimonial state is left entirely
to the ecclesiastical law: the temporal courts not having
jurisdiction to consider unlawful marriages as a sin, but merely
as a civil inconvenience. The punishment therefore, or annulling,
of incestuous or other unscriptural marriages, is the province of
the spiritual courts; which act pro salute animae[a]. And, taking
it in this civil light, the law treats it as it does all other contracts;
allowing it to be good and valid in all cases, where the parties at
the time of making it were, in the first place, willing to contract;
secondly, able to contract; and, lastly, actually did contract, in
the proper forms and solemnities required by law.

First, they must be willing to contract. "Consensus, non concubitus,
facit nuptias," is the maxim of the civil law in this
case[b]: and it is adopted by the common lawyers[c], who indeed
have borrowed (especially in antient times) almost all their notions
of the legitimacy of marriage from the canon and civil laws.

Secondly, they must be able to contract. In general, all
persons are able to contract themselves in marriage, unless they
labour under some particular disabilities, and incapacities. What
those are, it will here be our business to enquire.

Now these disabilities are of two sorts: first, such as are canonical,
and therefore sufficient by the ecclesiastical laws to avoid
the marriage in the spiritual court; but these in our law only
make the marriage voidable, and not ipso facto void, until sentence
of nullity be obtained. Of this nature are pre-contract;
consanguinity, or relation by blood; and affinity, or relation by
marriage; and some particular corporal infirmities. And these
canonical disabilities are either grounded upon the express words
of the divine law, or are consequences plainly deducible from
thence: it therefore being sinful in the persons, who labour under
them, to attempt to contract matrimony together, they are
properly the object of the ecclesiastical magistrate's coercion; in
order to separate the offenders, and inflict penance for the offence,
pro salute animarum. But such marriages not being void ab initio,
but voidable only by sentence of separation, they are esteemed
valid to all civil purposes, unless such separation is actually made
during the life of the parties. For, after the death of either of
them, the courts of common law will not suffer the spiritual court
to declare such marriages to have been void; because such declaration
cannot now tend to the reformation of the parties[d]. And
therefore when a man had married his first wife's sister, and after
her death the bishop's court was proceeding to annul the mar-*
*riage and bastardize the issue, the court of king's bench granted
a prohibition quoad hoc; but permitted them to proceed to punish
the husband for incest[e]. These canonical disabilities, being entirely
the province of the ecclesiastical courts, our books are perfectly
silent concerning them. But there are a few statutes, which
serve as directories to those courts, of which it will be proper to
take notice. By statute 32 Hen. VIII. c. 38. it is declared, that
all persons may lawfully marry, but such as are prohibited by
God's law; and that all marriages contracted by lawful persons in
the face of the church, and consummate with bodily knowlege, and
fruit of children, shall be indissoluble. And (because in the times
of popery a great variety of degrees of kindred were made impediments
to marriage, which impediments might however be
bought off for money) it is declared by the same statute, that nothing
(God's law except) shall impeach any marriage, but within
the Levitical degrees; the farthest of which is that between uncle
and niece[f]. By the same statute all impediments, arising from
pre-contracts to other persons, were abolished and declared of
none effect, unless they had been consummated with bodily knowlege:
in which case the canon law holds such contract to be a
marriage de facto. But this branch of the statute was repealed by
statute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33.
(which prohibits all suits in ecclesiastical courts to compel a marriage,
in consequence of any contract) may collaterally extend
to revive this clause of Henry VIII's statute, and abolish the
impediment of pre-contract, I leave to be considered by the
canonists.

The other sort of disabilities are those which are created, or
at least enforced, by the municipal laws. And, though some of
them may be grounded on natural law, yet they are regarded by
the laws of the land, not so much in the light of any moral offence,
as on account of the civil inconveniences they draw after
them. These civil disabilities make the contract void ab initio,
and not merely voidable: not that they dissolve a contract already
formed, but they render the parties incapable of forming any
contract at all: they do not put asunder those who are joined together,
but they previously hinder the junction. And, if any
persons under these legal incapacities come together, it is a meretricious,
and not a matrimonial, union.

1. The first of these legal disabilities is a prior marriage, or
having another husband or wife living; in which case, besides the
penalties consequent upon it as a felony, the second marriage is
to all intents and purposes void[g]: polygamy being condemned
both by the law of the new testament, and the policy of all prudent
states, especially in these northern climates. And Justinian,
even in the climate of modern Turkey, is express[h], that "duas
uxores eodem tempore habere non licet."

2. The next legal disability is want of age. This is sufficient
to avoid all other contracts, on account of the imbecillity of judgment
in the parties contracting; a fortiori therefore it ought to
avoid this, the most important contract of any. Therefore if a
boy under fourteen, or a girl under twelve years of age, marries,
this marriage is only inchoate and imperfect; and, when either of
them comes to the age of consent aforesaid, they may disagree
and declare the marriage void, without any divorce or sentence in
the spiritual court. This is founded on the civil law[i]. But the
canon law pays a greater regard to the constitution, than the age,
of the parties[k]: for if they are habiles ad matrimonium, it is a
good marriage, whatever their age may be. And in our law it is
so far a marriage, that, if at the age of consent they agree to continue
together, they need not be married again[l]. If the husband
be of years of discretion, and the wife under twelve, when she
comes to years of discretion he may disagree as well as she may:
for in contracts the obligation must be mutual; both must be
bound, or neither: and so it is, vice versa, when the wife is of
years of discretion, and the husband under[m].

3. Another incapacity arises from want of consent of parents
or guardians. By the common law, if the parties themselves
were of the age of consent, there wanted no other concurrence
to make the marriage valid: and this was agreeable to the
canon law. But, by several statutes[n], penalties of 100l. are laid
on every clergyman who marries a couple either without publication
of banns (which may give notice to parents or guardians) or
without a licence, to obtain which the consent of parents or
guardians must be sworn to. And by the statute 4 & 5 Ph. & M.
c. 8. whosoever marries any woman child under the age of sixteen
years, without consent of parents or guardians, shall be subject to
fine, or five years imprisonment: and her estate during the husband's
life shall go to and be enjoyed by the next heir. The civil
law indeed required the consent of the parent or tutor at all ages;
unless the children were emancipated, or out of the parents power[o]:
and, if such consent from the father was wanting, the marriage
was null, and the children illegitimate[p]; but the consent of the
mother or guardians, if unreasonably withheld, might be redressed
and supplied by the judge, or the president of the province[q]:
and if the father was non compos, a similar remedy was given[r].
These provisions are adopted and imitated by the French and
Hollanders, with this difference: that in France the sons cannot
marry without consent of parents till thirty years of age, nor the
daughters till twenty five[s]; and in Holland, the sons are at their
own disposal at twenty five, and the daughters at twenty[t]. Thus
hath stood, and thus at present stands, the law in other neighbouring
countries. And it has been lately thought proper to introduce
somewhat of the same policy into our laws, by statute 26 Geo. II.
c. 33. whereby it is enacted, that all marriages celebrated by licence
(for banns suppose notice) where either of the parties is
under twenty one, (not being a widow or widower, who are
supposed emancipated) without the consent of the father, or, if
he be not living, of the mother or guardians, shall be absolutely
void. A like provision is made as in the civil law, where the
mother or guardian is non compos, beyond sea, or unreasonably
froward, to dispense with such consent at the discretion of the
lord chancellor: but no provision is made, in case the father should
labour under any mental or other incapacity. Much may be, and
much has been, said both for and against this innovation upon our
antient laws and constitution. On the one hand, it prevents the
clandestine marriages of minors, which are often a terrible inconvenience
to those private families wherein they happen. On the
other hand, restraints upon marriage, especially among the lower
class, are evidently detrimental to the public, by hindering the
encrease of people; and to religion and morality, by encouraging
licentiousness and debauchery among the single of both sexes;
and thereby destroying one end of society and government, which
is, concubitu probibere vago. And of this last inconvenience the
Roman laws were so sensible, that at the same time that they forbad
marriage without the consent of parents or guardians, they
were less rigorous upon that very account with regard to other
restraints: for, if a parent did not provide a husband for his
daughter, by the time she arrived at the age of twenty five, and
she afterwards made a slip in her conduct, he was not allowed to
disinherit her upon that account; "quia non sua culpa, sed parentum,
id commisisse cognoscitur[u]."

4. A fourth incapacity is want of reason; without a competent
share of which, as no other, so neither can the matrimonial
contract, be valid. Idiots and lunatics, by the old common
law, might have married[w]; wherein it was manifestly defective.
The civil law judged much more sensibly, when it made such
deprivations of reason a previous impediment; though not a cause
of divorce, if they happened after marriage[x]. This defect in
our laws is however remedied with regard to lunatics, and persons
under frenzies, by the express words of the statute 15 Geo. II.
c. 30. and idiots, if not within the letter of the statute, are at
least within the reason of it.

Lastly, the parties must not only be willing, and able, to
contract, but actually must contract themselves in due form of
law, to make it a good civil marriage. Any contract made, per
verba de praesenti, or in words of the present tense, and in case
of cohabitation per verba de futuro also, between persons able to
contract, was before the late act deemed a valid marriage to many
purposes; and the parties might be compelled in the spiritual
courts to celebrate it in facie ecclesiae. But these verbal contracts
are now of no force, to compel a future marriage[y]. Neither is
any marriage at present valid, that is not celebrated in some parish
church or public chapel, unless by dispensation from the arch-*bishop
of Canterbury. It must also be preceded by publication
of banns, or by licence from the spiritual judge. Many other
formalities are likewise prescribed by the act; the neglect of
which, though penal, does not invalidate the marriage. It is
held to be also essential to a marriage, that it be performed by a
person in orders[z]; though the intervention of a priest to solemnize
this contract is merely juris positivi, and not juris naturalis
aut divini: it being said that pope Innocent the third was the
first who ordained the celebration of marriage in the church[a];
before which it was totally a civil contract. And, in the times
of the grand rebellion, all marriages were performed by the
justices of the peace; and these marriages were declared valid,
without any fresh solemnization, by statute 12 Car. II. c. 33.
But, as the law now stands, we may upon the whole collect, that
no marriage by the temporal law is ipso facto void, that is celebrated
by a person in orders,--in a parish church or public
chapel (or elsewhere, by special dispensation)--in pursuance
of banns or a licence,--between single persons,--consenting,--of
sound mind,--and of the age of twenty one years;--or
of the age of fourteen in males and twelve in females, with
consent of parents or guardians, or without it, in case of widow-*hood.
And no marriage is voidable by the ecclesiastical law, after
the death of either of the parties; nor during their lives, unless
for the canonical impediments of pre-contract, if that indeed still
exists; of consanguinity; and of affinity, or corporal imbecillity,
subsisting previous to the marriage.

II. I am next to consider the manner in which marriages
may be dissolved; and this is either by death, or divorce. There
are two kinds of divorce, the one total, the other partial; the
one a vinculo matrimonii, the other merely a mensa et thoro. The
total divorce, a vinculo matrimonii, must be for some of the canonical
causes of impediment before-mentioned; and those, existing
before the marriage, as is always the case in consanguinity;
not supervenient, or arising afterwards, as may be the case in affinity
or corporal imbecillity. For in cases of total divorce, the
marriage is declared null, as having been absolutely unlawful ab
initio; and the parties are therefore separated pro salute animarum:
for which reason, as was before observed, no divorce can
be obtained, but during the life of the parties. The issue of such
marriage, as is thus entirely dissolved, are bastards[b].

Divorce a mensa et thoro is when the marriage is just and
lawful ab initio, and therefore the law is tender of dissolving it;
but, for some supervenient cause, it becomes improper or impossible
for the parties to live together: as in the case of intolerable ill
temper, or adultery, in either of the parties. For the canon law,
which the common law follows in this case, deems so highly and
with such mysterious reverence of the nuptial tie, that it will not
allow it to be unloosed for any cause whatsoever, that arises after
the union is made. And this is said to be built on the divine re-*
*vealed law; though that expressly assigns incontinence as a cause,
and indeed the only cause, why a man may put away his wife
and marry another[c]. The civil law, which is partly of pagan
original, allows many causes of absolute divorce; and some of
them pretty severe ones, (as if a wife goes to the theatre or the
public games, without the knowlege and consent of the husband[d])
but among them adultery is the principal, and with reason named
the first[e]. But with us in England adultery is only a cause of separation
from bed and board[f]: for which the best reason that
can be given, is, that if divorces were allowed to depend upon
a matter within the power of either the parties, they would probably
be extremely frequent; as was the case when divorces were
allowed for canonical disabilities, on the mere confession of the
parties[g], which is now prohibited by the canons[h]. However,
divorces a vinculo matrimonii, for adultery, have of late years been
frequently granted by act of parliament.

In case of divorce a mensa et thoro, the law allows alimony to the
wife; which is that allowance, which is made to a woman
for her support out of the husband's estate; being settled at the
discretion of the ecclesiastical judge, on consideration of all the
circumstances of the case. This is sometimes called her estovers;
for which, if he refuses payment, there is (besides the ordinary
process of excommunication) a writ at common law de estoveriis
habendis, in order to recover it[i]. It is generally proportioned to
the rank and quality of the parties. But in case of elopement,
and living with an adulterer, the law allows her no alimony[k].

III. Having thus shewn how marriages may be made, or
dissolved, I come now, lastly, to speak of the legal consequences
of such making, or dissolution.

By marriage, the husband and wife are one person in law[l]:
that is, the very being or legal existence of the woman is suspended
during the marriage, or at least is incorporated and consolidated
into that of the husband: under whose wing, protection,
and cover, she performs every thing; and is therefore called in
our law-french a feme-covert; is said to be covert-baron, or under
the protection and influence of her husband, her baron, or
lord; and her condition during her marriage is called her coverture.
Upon this principle, of an union of person in husband and
wife, depend almost all the legal rights, duties, and disabilities,
that either of them acquire by the marriage. I speak not at present
of the rights of property, but of such as are merely personal.
For this reason, a man cannot grant any thing to his wife, or enter
into covenant with her[m]: for the grant would be to suppose
her separate existence; and to covenant with her, would be only
to covenant with himself: and therefore it is also generally true,
that all compacts made between husband and wife, when single,
are voided by the intermarriage[n]. A woman indeed may be attorney
for her husband[o]; for that implies no separation from, but
is rather a representation of, her lord. And a husband may also
bequeath any thing to his wife by will; for that cannot take effect
till the coverture is determined by his death[p]. The husband
is bound to provide his wife with necessaries by law, as much as
himself; and if she contracts debts for them, he is obliged to
pay them[q]: but for any thing besides necessaries, he is not chargeable[r].
Also if a wife elopes, and lives with another man, the
husband is not chargeable even for necessaries[s]; at least if the
person, who furnishes them, is sufficiently apprized of her elopement[t].
If the wife be indebted before marriage, the husband is
bound afterwards to pay the debt; for he has adopted her and
her circumstances together[u]. If the wife be injured in her person
or her property, she can bring no action for redress without
her husband's concurrence, and in his name, as well as her own[w]:
neither can she be sued, without making the husband a defendant[x].
There is indeed one case where the wife shall sue and be
sued as a feme sole, viz. where the husband has abjured the realm,
or is banished[y]: for then he is dead in law; and, the husband
being thus disabled to sue for or defend the wife, it would be
most unreasonable if she had no remedy, or could make no defence
at all. In criminal prosecutions, it is true, the wife may
be indicted and punished separately[z]; for the union is only a civil
union. But, in trials of any sort, they are not allowed to be evidence
for, or against, each other[a]: partly because it is impossible
their testimony should be indifferent; but principally because of
the union of person: and therefore, if they were admitted to be
witnesses for each other, they would contradict one maxim of
law, "nemo in propria causa testis esse debet;" and if against each
other, they would contradict another maxim, "nemo tenetur seipsum[**P2: typo here, se and ipsum are actually separate words]
accusare." But where the offence is directly against the
person of the wife, this rule has been usually dispensed with[b]:
and therefore, by statute 3 Hen. VII. c. 2. in case a woman be
forcibly taken away, and married, she may be a witness against
such her husband, in order to convict him of felony. For in this
case she can with no propriety be reckoned his wife; because a
main ingredient, her consent, was wanting to the contract: and
also there is another maxim of law, that no man shall take advantage
of his own wrong; which the ravisher here would do,
if by forcibly marrying a woman, he could prevent her from
being a witness, who is perhaps the only witness, to that very
fact.

In the civil law the husband and wife are considered as two
distinct persons; and may have separate estates, contracts, debts,
and injuries[c]: and therefore, in our ecclesiastical courts, a woman
may sue and be sued without her husband[d].

But, though our law in general considers man and wife as
one person, yet there are some instances in which she is separately
considered; as inferior to him, and acting by his compulsion.
And therefore all deeds executed, and acts done, by her, during
her coverture, are void, or at least voidable; except it be a fine,
or the like matter of record, in which case she must be solely and
secretly examined, to learn if her act be voluntary[e]. She cannot
by will devise lands to her husband, unless under special circumstances;
for at the time of making it she is supposed to be under
his coercion[f]. And in some felonies, and other inferior crimes,
committed by her, through constraint of her husband, the law
excuses her[g]: but this extends not to treason or murder.

The husband also (by the old law) might give his wife moderate
correction[h]. For, as he is to answer for her misbehaviour,
the law thought it reasonable to intrust him with this power of
restraining her, by domestic chastisement, in the same moderation
that a man is allowed to correct his servants or children; for
whom the master or parent is also liable in some cases to answer.
But this power of correction was confined within reasonable
bounds[i]; and the husband was prohibited to use any violence to
his wife, aliter quam ad virum, ex causa regiminis et castigationis
uxoris suae, licite et rationabiliter pertinet[k]. The civil law gave
the husband the same, or a larger, authority over his wife; allowing
him, for some misdemesnors, flagellis et fustibus acriter verberare
uxorem; for others, only modicam castigationem adhibere[l].
But, with us, in the politer reign of Charles the second, this
power of correction began to be doubted[m]: and a wife may now
have security of the peace against her husband[n]; or, in return, a
husband against his wife[o]. Yet the lower rank of people, who
were always fond of the old common law, still claim and exert
their antient privilege: and the courts of law will still permit a
husband to restrain a wife of her liberty, in case of any gross
misbehaviour[p].

These are the chief legal effects of marriage during the coverture;
upon which we may observe, that even the disabilities,
which the wife lies under, are for the most part intended for her
protection and benefit. So great a favourite is the female sex of
the laws of England.



End of section 44